New Jersey Divorce Law
Divorce and Legal Separation in New Jersey
Divorce and Legal Separation in New Jersey
New Jersey Divorce Basics
To file for absolute divorce or dissolution of a civil union on grounds other than adultery, either party must be a resident of the state for one year prior to commencement of the action.
Nullity of Marriage and Dissolution of a Civil Union:
To file for nullity or marriage or dissolution of a civil union, either party must be a bona fide resident of New Jersey at the time of the commencement of the action; and process is served upon the defendant as prescribed by the rules of Supreme Court.
A Plaintiff, filing party, may file a Complaint for Divorce, in the Superior Court of the county in which the Plaintiff resides at the time the cause of action arises. If the Plaintiff does not reside in New Jersey, he/she may file in the county in which the Defendant, other party, resides.
In New Jersey, the court, administrative agency, or quasi-judicial entity authorized to establish, enforce or modify judicial orders is referred to as a tribunal.
The court, upon or after granting a divorce from the bonds of matrimony or dissolution of a civil union, may allow either spouse or partner in a civil union couple to resume any name used by the party prior to the marriage or civil union, or to assume any surname.
Criteria for Establishing a Civil Union:
To establish a civil union in New Jersey, the parties must meet the following requirements:
- Not be a party to another civil union, domestic partnership or marriage in the state or a that is recognized by the state;
- Both parties must be of the same sex; and
- Both parties must be at least 18 years of age, unless the party has received parental consent and is at least 16 years of age. Applicants under 16 years of age must obtain both parental and judicial consent to enter into a civil union.
If both parties are not residents of New Jersey, the license must be obtained from the Registrar of the municipality where the ceremony is to be performed and is only good for use in that municipality.
There is a 72 hour waiting period between applying for the license and receiving the civil union license. The couple must have the ceremony within 30 days of applying for the license.
Due to the implementation of the Civil Union Act in New Jersey in 2007, the Domestic Partnership Act was amended to allow new domestic partnership registrations only to individuals age 62 or older.
Couples, who registered as domestic partners prior to the establishment of civil unions with the Civil Union Act, are not required to subsequently enter into civil unions. They may continue to have the rights afforded to domestic partners under the Domestic Partnership Act.
Same sex couples who are already registered as domestic partners (provided they meet the requirements) may enter into a civil union with one another if they choose, without first terminating their domestic partnership. If the domestic partnership was registered in New Jersey, it automatically terminates when the civil union is registered. If the domestic partnership was registered in another state, that stateís laws determine the impact of the civil union on the domestic partnership.
Legal Grounds for Divorce and Dissolution of Civil Unions
Grounds for divorce from the bonds of matrimony:
2. Willful and continued desertion for the term of 12 or more months;
3. Extreme cruelty, defined as including any physical or mental cruelty which endangers the safety or health of the Plaintiff or makes it improper or unreasonable to expect the Plaintiff to continue to cohabit with the Defendant, provided that no complaint for divorce shall be filed until after three months from the date of the last act of cruelty complained of in the complaint;
4. Separation, provided that the husband and wife have resided separate and apart for a period of at least 18 or more consecutive months and there is no reasonable prospect of reconciliation;
5. Voluntarily induced addiction or habituation to any narcotic drug, or habitual drunkenness for a period of 12 or more consecutive months after the date of the marriage and prior to filing the complaint;
6. Institutionalization for mental illness for a period of 24 or more consecutive months after the date of the marriage and prior to the the filing of the complaint;
7. Imprisonment of the Defendant for 18 or more consecutive months after marriage, provided that if the action is not commenced until after the defendantís release, the parties have not resumed cohabitation following the imprisonment;
8. Deviant sexual conduct voluntarily performed by the Defendant without the consent of the Plaintiff; and
9. Irreconcilable differences which have caused the breakdown of the marriage for a period of six months and which make it appear that the marriage should be dissolved and that there is no reasonable prospect of reconciliation.
Civil Union Dissolution:
The dissolution of a civil union may be adjudged for the following causes:
1. Voluntary sexual intercourse between a person who is in a civil union and an individual other than the personís partner in the civil union couple;
2. Willful and continued desertion for a period of 12 or more consecutive months;
3. Extreme cruelty, defined as including any physical or mental cruelty which endangers the safety or health of the Plaintiff or makes it improper or unreasonable to expect the Plaintiff to continue to cohabit with the Defendant, provided that no complaint for dissolution of the civil union shall be filed until after three months from the date of the last act of cruelty complained of in the complaint;
4. Separation, provided that the partners in a civil union have resided separate and apart for a period of at least 18 or more consecutive months and there is no reasonable prospect of reconciliation;
5. Voluntarily induced addiction or habituation to any narcotic drug or habitual drunkenness for 12 or more consecutive months after the establishment of the civil union and before filing the complaint;
6. Institutionalization for mental illness for a period of 24 or more consecutive months after the establishment of the civil union and before filing the complaint; and
7. Imprisonment of the Defendant for 18 or more consecutive months after establishment of the civil union, provided that if the action is not commenced until after the defendantís release, the parties have not resumed cohabitation following the imprisonment.
The dissolution of civil unions shall follow the same procedures and be subject to the same substantive rights and obligations that are involved in the dissolution of marriage.
Nullity of Marriage and Civil Unions
Nullity of Marriage:
Judgments of nullity of marriage may be rendered in all cases when one of the following criteria is met:
- The parties are related within the degrees prohibited by law;
- Either or both parties were, at the time of marriage, physically and incurably impotent, provided the party filing for nullity was unaware of the impotency and the marriage has not subsequently been consummated;
- Either or both parties lacked the capacity to marry due to mental condition or the influence of intoxicants, drugs or similar agents, and has not subsequently ratified the marriage;
- There was a lack of mutual assent to the marital relationship due to duress or fraud as to the essentials of marriage, and has not subsequently ratified the marriage;
- The application for nullity is made by a wife or husband who was under the age of 18 years at the time of the marriage, unless the marriage was subsequently confirmed after she/he came of age; or
- As is allowable under the general equity jurisdiction of the Superior Court.
Judgments of nullity of a civil union may be rendered in all cases when one of the following criteria is met:
- Either of the parties has another wife, husband, partner in a civil union or domestic partner living at the time of establishing the new civil union;
- The parties are related within the degrees prohibited by law from entering into a marriage or establishing a civil union or domestic partnership;
- Either or both parties lacked the capacity to enter into a civil union due to mental condition or the influence of intoxicants, drugs or similar agents;
- There was a lack of mutual assent to the civil union due to duress or fraud as to the essentials of a civil union, and has not subsequently ratified the civil union;
- The application for nullity is made by a party who was under the age of 18 years at the time of the civil union, unless the civil union was subsequently confirmed after she/he came of age; or
- As is allowable under the general equity jurisdiction of the Superior Court.
However, all such property, real, personal or otherwise, legally or beneficially acquired during the marriage or civil union by either party by way of gift, devise, or intestate succession shall not be subject to equitable distribution, except for gifts between spouses or between partners in a civil union couple which shall be subject to equitable distribution.
In making a determination for equitable distribution of property, the court shall consider the following factors:
- The duration of the marriage or civil union;
- The age and physical and emotional health of the parties;
- The income or property brought to the marriage or civil union by each party;
- The standard of living established during the marriage or civil union;
- Any written agreement made by the parties before or during the marriage or civil union concerning an arrangement of property distribution;
- The economic circumstances of each party at the time the division of property becomes effective;
- The income and earning capacity of each party, including educational background, training, employment skills, work experience, length of absence from the job market, custodial responsibilities for children, and the time and expense necessary to acquire sufficient education or training to enable the party to become self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage or civil union;
- The contribution by each party to the education, training or earning power of the other;
- The contribution of each party to the acquisition, dissipation, preservation, depreciation or appreciation in the amount or value of the marital property, or the property acquired during the civil union as well as the contribution of a party as a homemaker;
- The tax consequences of the proposed distribution to each party;
- The present value of the property;
- The need of a parent who has physical custody of a child to own or occupy the marital residence or residence shared by the partners in a civil union couple and to use or own the household effects;
- The debts and liabilities of the parties;
- The need for creation, now or in the future, of a trust fund to secure reasonably foreseeable medical or educational costs for a spouse, partner in a civil union couple or children;
- The extent to which a party deferred achieving their career goals; and
- Any other factors which the court may deem relevant.
Alimony and Maintenance
When determining an award of alimony and what type, the court shall consider the following factors:
- The actual need and ability of the parties to pay;
- The duration of the marriage or civil union;
- The age, physical and emotional health of the parties;
- The standard of living established in the marriage or civil union and the likelihood that each party can maintain a reasonably comparable standard of living;
- The earning capacities, educational levels, vocational skills, and employability of the parties;
- The length of absence from the job market of the requesting party;
- The parental responsibilities for the children;
- The time and expense necessary to acquire sufficient education or training to enable the requesting party to find appropriate employment, the availability of the training and employment, and the opportunity for future acquisitions of capital assets and income;
- The history of the financial or non-financial contributions to the marriage or civil union by each party including contributions to the care and education of the children and interruption of personal careers or educational opportunities;
- The equitable distribution of property ordered and any payouts on equitable distribution, directly or indirectly, out of current income, to the extent this consideration is reasonable, just and fair;
- The income available to either party through investment of any assets held by that party;
- The tax treatment and consequences to both parties of any alimony award, including the designation of all or a portion of the payment as a non-taxable payment; and
- Any other factors which the court may deem relevant.
When a share of a retirement benefit is treated as an asset for purposes of equitable distribution, the court shall not consider income generated thereafter by that share for purposes of determining alimony.
Rehabilitative alimony shall be awarded based upon a plan in which the receiving spouse or partner shows the scope of rehabilitation, the steps to be taken, and the timeframe, including a period of employment during which rehabilitation will occur.
Reimbursement alimony may be awarded under circumstances in which one party supported the other through an advanced education, anticipating participation in the fruits of the earning capacity generated by that education.
Child Custody and Support
New Jersey law declares that it is in the stateís public policy to assure minor children of frequent and continuing contact with both parents after the parents have separated or dissolved their marriage, and that it is in the public interest to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy.
In any proceeding involving the custody of a minor child, the rights of both parents shall be equal and the court shall enter an order which may include one of the following:
- Joint custody of a minor child to both parents, which is made up of legal custody or physical custody that includes provisions for residential arrangements so that the child shall reside either solely with one parent or alternatively with each parent in accordance with the needs of the parents and the child, and provisions for consultation between the parents in making major decisions regarding the childís health, education and general welfare;
- Sole custody to one parent with appropriate parenting time for the noncustodial parent; or
- Any other custody arrangement as the court may determine to be in the best interests of the child.
- The parentsí ability to agree, communicate and cooperate in matters relating to the child(ren);
- The parentsí willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiate abuse;
- The interaction and relationship of the child(ren) with the parents and siblings;
- The history of domestic violence, if any;
- The safety of the child(ren) and the safety of either parent from physical abuse by the other parent;
- The preference of the child(ren) when of sufficient age and capacity to reason so as to form an intelligent decision;
- The needs of the child(ren);
- The stability of the home environment offered;
- The quality and continuity of the child(ren)ís education;
- The fitness of the parents;
- The geographical proximity of the parentsí homes;
- The extent and quality of the time spent with the child(ren) prior to or subsequent to the separation;
- The parentsí employment responsibilities; and
- The age and number of the children.
When the parents of a minor child live separately, or are about to do so, the Superior Court, in an action brought by either parent, shall have the same power to make judgments or orders concerning care, custody, education and maintenance as concerning a minor child whose parents are divorced.
The New Jersey legislature, in noting that there has been an increase in filings for dissolution of marriage, declares that the best interests of the children of these marriages in maintaining close relationships with both parents regardless of which parent has the physical custody of the child is paramount.
Therefore, the legislature has bolstered the statutory civil remedies available to judges who hear these matters. A judge who sanctions a party for failure to comply with an order of visitation shall have the following remedies available:
- The awarding of counsel fees of the aggrieved party against the party who violated the terms of the order;
- Community service;
- The awarding of compensatory time for the time with the child for which the party was deprived;
- The awarding of monetary compensation for additional costs incurred when a parent fails to appear for scheduled visitation; and
- Other economic sanctions which may be decided on a case-by-case basis.
A person convicted of sexual assault, sexual contact or endangering the welfare of a child under New Jersey statutes shall not be awarded the custody of or visitation rights to any minor child, except upon a showing by clear and convincing evidence that it is in the best interest of the child for custody or visitation rights to be awarded.
However, if a court makes this judgment, it shall stay enforcement of the order or judgment for at least 10 days in order to permit the appeal of the order or judgment and application for a stay in accordance with the Rules of the Court.
A denial or custody or visitation under this rule shall not by itself terminate the parental rights of the person denied visitation or custody. Nor shall it affect his/her obligation to support the minor child.
Parentsí Education Program:
The Parentsí Education Program is a mandatory education program designed to assist and advise divorced parents on issues concerning divorce, separation and custody. The program is made available twice a month.
The purpose of the program is to promote cooperation between the parties and to assist parents in resolving issues which may arise during the divorce or separation process, including the following:
- Understanding the legal process and cost of divorce or separation, including arbitration and mediation;
- Understanding the financial responsibilities for the children;
- Understanding the interaction between parent and child, the family relationship and any other areas of adjustment and concern during the process of divorce or separation;
- Understanding how children react to divorce or separation, how to spot problems, what to tell them about divorce or separation, how to keep communication open and how to answer questions and concerns the children may have about the process;
- Understanding how parents can help their children during the divorce or separation, specific strategies, ideas, tools and resources for assistance;
- Understanding how parents can help children after the divorce or separation and how to deal with new family structures and different sets of rules; and
- Understanding that cooperation may sometimes be inappropriate in cases of domestic violence.
New Jersey uses the Income Shares Model for calculating child support. In determining the amount to be paid by a parent for child support and the period during which the duty of support is owed, the court shall consider the following factors:
- Needs of the child(ren);
- Standard of living and economic circumstances of each parent;
- All sources of income and assets of each parent;
- Earning ability of each parent, including educational background, training, employment skills, work experience, custodial responsibility for children including the cost of providing child care and the length of time and cost of each parent to obtain training or experience for appropriate employment;
- Need and capacity of the child(ren) for education, including higher education;
- Age and health of the child and each parent;
- Income, assets and earning ability of the child(ren);
- Responsibility of the parents for the court-ordered support of others;
- Reasonable debts and liabilities of each child and parent; and
- Any other factors the court may deem relevant.
The obligation to pay support for that child shall continue until the court finds that the child is relieved of the incapacity or is no longer financially dependent on the parent. However, in assessing the financial obligation of the parent, the court shall consider the childís eligibility for public benefits and services for people with disabilities and may make such orders, including an order for the creation of a trust, as are necessary to promote the well-being of the child.
Jurisdiction over non-resident parent:
In a proceeding to establish, enforce or modify a support order, a tribunal of the State may exercise personal jurisdiction over a non-resident individual or his/her guardian or conservator in the following situations:
- The individual is personally served with a summons or notice within New Jersey;
- The individual submits to the jurisdiction of the State by consent, by entering a general appearance, or by filing a Response which waives any contest to personal jurisdiction;
- The individual resided with the child in the State;
- The individual resided in the State and provided prenatal expense or support for the child;
- The child resides in the State as a result of the acts or directives of the individual;
- The individual engaged in sexual intercourse in the State and the child may have been conceived by that act of intercourse; or
- There is any other basis consistent with the constitutions of the State and the U.S. for the exercise of personal jurisdiction.
- Ensuring Your Children Receive the Child Support They Deserve in New Jersey
When one parent acts as the primary guardian for a child, the other parent is generally required to contribute to the financial needs of that child. Generally, in New Jersey, the amount of child support one parent pays another is based on the New Jersey Child Support Guidelines. These Guidelines are found in Appendix IX of the New Jersey Court Rules.
Legal Separation and Divorce from Bed and Board
Divorce from bed and board may be granted for the same grounds as divorce from the bonds of matrimony with the following provisions:
- Both parties petition or join in requesting the action;
- The couple or either party presents sufficient proof of such grounds;
- In the event of a later reconciliation, the parties may apply for a revocation or suspension of the judgment; and
- The granting of a bed and board divorce shall in no way prejudice either party from thereafter applying to the court for a conversion to a divorce from the bonds of matrimony, if they so desire.
- Both parties petition or join in requesting the legal separation;
- The couple or either of the parties present sufficient proof of such cause or causes;
- In the event of a future reconciliation, the parties may apply for a revocation or suspension of the judgment;
- The granting of a legal separation from a partner in a civil union couple shall in no way prejudice either party from thereafter applying to the court for a conversion to a dissolution of a civil union, if they so desire.
Links to State Resources
- Child Support Hearing Officer Program Operations Manual
A publication provided by the New Jersey Administrative Office of the Courts.
- Legal Services of New Jersey (LSNJ) Divorce Self-Help Guide
- New Jersey Statutes, Title 2A:34
Provides links to text to Section 34 of Title 2A of the New Jersey Statutes which deals with divorce, annulment, legal separation, dissolution of civil unions and other related issues.
- Parenting Time: A Childís Right
A publication provided by the New Jersey Administrative Office of the Courts regarding the stateís laws governing custody and parenting time.
- Rules of the Court
Rules governing civil practice in the Superior Court, Tax Court and Surrogateís Court.